Last week’s Halbig v. Burwell ruling from the D.C. Circuit Court of Appeals was a panic-inducing bomb dropped on defenders of ObamaCare, who suddenly found themselves forced to contemplate the possible death of the Affordable Care Act due to a legislative stake being driven through its subsidized heart. As a quick refresher, the Affordable Care Act clearly states that only health insurance purchased through state exchanges can receive subsidies, and only 14 states actually opted to create those exchanges. The Halbig judges ruled that what a law actually says, in plain English words typed on paper, is very important. You can see why everybody was shocked by that.
On the very same day, a second decision was handed down by a different court, the Fourth Circuit Court of Appeals, in the very similar King v. Burwell case. (“Burwell” is Sylvia Matthews Burwell, successor to Kathleen “Whatever” Sebelius as Secretary of Health and Human Services.) The Fourth Circuit ruled the other way, and in essence said the law should not be interpreted in a way that thwarts the intentions of its creators, and goodness gracious, they couldn’t possibly have intended to restrict subsidies to just the state exchanges, because that would cause ObamaCare to self-destruct. It’s called the “Affordable” Care Act, and nobody can afford its insurance plans without subsidies! There’s already quite a bit of “rate shock” hitting consumers even with the subsidies.
The Competitive Enterprise Institute announced on Friday that it has petitioned the Supreme Court to review the King v. Burwell decision, expressing a desire to get the situation resolved rather than wait for various other scenarios, such as the possibility that the full D.C. Circuit Court will overturn the decision of the three-judge panel that ruled in the Halbig case. “From the time these cases were first filed, we???ve tried to get this issue resolved as quickly as possible for the plaintiffs and the millions of individuals like them,” reads a statement from CEI general counsel Sam Kazman. “A fast resolution is also vitally important to the states that chose not to set up exchanges, to the employers in those states who face either major compliance costs or huge penalties, and to employees who face possible layoffs or reductions in their work hours as a result of this illegal IRS rule. Our petition today to the Supreme Court represents the next step in that process.”
Perhaps CEI and other plaintiffs are feeling good about their chances at the Supreme Court, thanks to the mounting body of evidence that the subsidy block was no “typo” (or “speak-o” in the embarrassing coinage of ObamaCare consultant Jonathan Gruber, referring to what he wants us to be believe was the verbal equivalent of a type.) ObamaCare is a hideous monstrosity fused together from several different bills, and some of its many creators thought it was a good idea to threaten states into creating exchanges by withholding those subsidy payments. It was a scam designed to give the appearance of choice and voluntary cooperation, when in reality, refusenik governors would soon face angry mobs of citizens demanding the same subsidies other states were getting.
All sorts of inconvenient statements to this effect have bubbled up over the past week, frequently paired with comments that make it clear the clueless academics and political grifters who cobbled ObamaCare together drastically underestimated how many states would initially refuse to establish exchanges. Gruber, for example, is up to seven recorded speak-os now, including some that came from prepared remarks, not off-the-cuff comments:
Eager to defend ObamaCare, Washington Post blogger Greg Sargent racked his shotgun and proceeded to blow his own foot off, claiming to have found “bombshell” evidence of primordial Affordable Care Act language that proved subsidies for federal exchange customers were contemplated at one time… only to learn that courts consider the removal of such language in subsequent iterations of a bill conclusive proof that it was not “intended” to be in the final product. This was all going to come up in court eventually, so Sargent won’t go down in history as the ObamaCare apologist who accidentally killed it, but the panic level on the Left went up a few notches after they noticed where his “bombshell” ended up detonating.
As if the stakes weren’t high enough with respect to ObamaCare, this business of deciding whether the “intentions” of a bill’s creators (or whatever they now claim their intentions were) trumps the actual wording of a law is a very big deal. It’s one thing to divine intentions when the words in question are ambiguous, but they really aren’t in the case of the Affordable Care Act. Of course, the Act was a mess, passed in the dead of night during a mad rush to force it through Congress before the public had a chance to read it. The people who signed off on it most certainly did not. That’s why they keep acting stunned by what it turns out to have said. If judicial pixie dust is sprinkled on ObamaCare to keep it viable, it will set a hideous precedent for future Big Government power grabs. You can bet we’ll see more incomprehensible legislation filled with blank pages and quantum phrases that can mean whatever the next Congress needs them to mean, based on whatever contingencies have arisen.
Look at it this way: if 45 states had formed exchanges and there were only five holdouts, virtually none of the people currently defending ObamaCare against the Halbig and King challenges would be singing the same tune. They would be confidently assuring us that of course state exchanges are necessary to obtain subsidies, and you five uncooperative governors had better get cracking on setting yours up, lest your furious constituents replace you with a Democrat who will. They’re only eager to disable the subsidy trap because it’s about to blow up in their faces.
One other thought about this “intentions” business: another bit of past legislation making the news these days is the 2008 William Wilberforce Trafficking Victims Protection Reauthorization Act, which supposedly prevents the Obama Administration from swiftly deporting the tidal wave of Unaccompanied Alien Children surging across the border. In truth, it does absolutely no such thing. The wording of the Act is very clear on who it applies to, and as I’ve noted before (and Ann Coulter emphasized yesterday) most of the current wave of UACs manifestly do not qualify, because they have relatives in the United States.
A question to ObamaCare defenders: the intentions of those who drafted and passed the Wilberforce Act are also very clear, as can be seen from its name: it’s supposed to offer protection to the victims of human trafficking, not illegal aliens deliberately crossing the border, or even “refugees” from violence or poverty. Virtually every page of this Act makes its intentions clear. You will find no contemporaneous “speak-o” statements from 2008 in which Congressmen say, “No, we really meant this thing to extend indefinite residency to every child from Central America who makes it across the Rio Grande. We talked about human trafficking a lot, but what we really wanted to do was erase the southern border.”
So: why do the alleged intentions of ObamaCare’s creators, as they claim today – in direct contradiction to a growing number of written and spoken statements from the debate over the Affordable Care Act – trump its clear text, but the intentions of those who passed the Wilberforce Act don’t matter at all? One almost gets the feeling that this business of “intentions” might be flimsy camouflage for lawlessness and the will to power.
I’m still somewhat cynical about the odds of our corrupt system finding some way to keep ObamaCare alive in the face of this challenge, but I’ve got to say that, thanks to the tireless efforts of ObamaCare defenders, its demise looks like a better bet than it did last week.